AGREEMENT BETWEEN USER AND HOOPOE MEDIA PVT. LTD
These Terms constitute a legally valid and binding agreement between you (including its literal variants i.e. “you”, “your” or “yourself”), the end user, and the owner of Damroo, namely Hoopoe Media Private Limited having its office at E-404 Gaurav Residency Chs. Ltd., Beverly Park, Mira Road (E) Thane 401107(hereinafter referred to as “our”, “us”, “we” or “Hoopoe”) which shall include a reference to our affiliates, associates, sister concerns etc including uTunes Entertainment Private Limited, having its office at 136/1B/H4, Belia Ghata Road, Kolkata 700015.
Please read the terms and conditions contained below carefully as your use of Damroo is subject to your acceptance and strict compliance of the terms contained hereinafter.
- YOUR USE OF DAMROO AND DAMROO PLUS (‘DAMROO’)
By accessing, subscribing to or using Damroo you expressly agree as follows –
- You are legally competent, as per applicable laws, to enter into the present agreement and access the Services provided on Damroo and are not suffering from any legal or contractual disability.
- In particular, you specifically warrant that you are of sound mind and of the minimum age required under applicable laws of India to enter into a legally enforceable agreement yourself (“Legal Capacity”). If you are a parent and/or legal guardian of a minor, by allowing your child to access and use Damroo through your account, you consent to Terms and are responsible for your child’s activity on the Damroo Application and the Service. As a parent and/or legal guardian you further consent that access and use of Damroo and Services by your child would only be under your guidance, control and supervision.
- You can accept the Terms by accessing or using our Services. You understand and agree that we will treat your access or use of the Services as acceptance of the Terms from that point onwards.
- YOUR ACCOUNT WITH US
- You can access and browse some of the Damroo Content made available on Damroo without creating an account with us (‘User”). As a User you may not have access to all the features of the Services.
- In order to enjoy certain additional features on Damroo such as like, comment, create and/or share playlist and embed Damroo Content (within Damroo Service) you must register with us by creating a user account (“Account”). Any User who creates an account with Damroo shall be referred to as Registered User. The Registered User must provide accurate and up-to-date information including name, age, email id, phone number and/or register through Registered User’s Google or Facebook account. It is important that you as a Registered User maintain and promptly update your details and any other information you provide to us, to keep such information current and complete. You are fully responsible in law for the information that you provide us through your Account. When creating an Account, you must provide accurate information about yourself and create only one account for strictly personal and non-commercial purposes.
- Additionally, in case you are a creator of original music/original content, Singer and/or label and want Damroo to stream or distribute your original content through Damroo Plus and become a provider of content on Damroo (‘Damroo Provider’), you must register with us by providing the following details:
- Singer/Talent: Full Legal Name, Artist Stage Name, Profile Photo, Photo ID( copy of either Aadhar Card, Passport, Voter’s ID or Driver’s license), PAN Card, Age, Gender, Full Residential Address with pin code, Email and phono number
- Label: Full Legal Name, Label Name, Company documents (copy of incorporation certificate, PAN and GST) Owner/Director’s/Authorised Signatory’s Photo ID (copy of Aadhaar or Passport), Email and Phone number
A Damroo Provider is necessarily a Registered User whereas a Registered User may not be a Damroo Provider.
- Upon successful registration a Damroo Provider before uploading any content has to provide the following data/information:
- Full Asset/Content Metadata
- Upload as per specifications detailed, the audio/audio-visual file along with artwork including album art
- Opt in and Opt out of the Services i.e. Distribution and/or Streaming Services on Damroo Plus (a Damroo Provider can opt in both or any one)
- Select the Territory i.e. India or Worldwide
- Accept and consent to the terms and conditions contained within the Damroo Music Rights Distribution Agreement and/or Damroo Streaming Agreement as the case may be. The terms and conditions contained in the Damroo Music Rights Distribution Agreement and/or Damroo Streaming Agreement shall apply to the Damroo Provider in addition to the Terms herein. In case of any inconsistency in the Terms herein and the Damroo Music Rights Distribution Agreement and/or Damroo Streaming Agreement, the terms of the later shall govern the relationship between the Damroo Provider and us.
- The Damroo Provider thereafter has to pay the annual subscription fees and/or Distribution Fees plus applicable taxes as the case may be. Hoopoe may in its sole and absolute discretion revise the subscription fees and/or distribution fee from time to time. Notice on the Services of such revision in subscription fees and/or distribution fees will suffice as adequate intimation to you.
- The said Subscription Fees and/or Distribution Fees will be billed at the beginning of your subscription and on each subsequent renewal (as per the plan chosen by you) thereafter unless and until you cancel your subscription or the Account or Service is otherwise suspended or discounted pursuant to these Terms. In order to continue the Damroo Plus Services you agree to honor the payment obligations to which you have agreed to. Accordingly, Hoopoe reserves the right to pursue any amounts you fail to pay in connection with the Services. You will remain liable to Hoopoe for all such amounts and all costs incurred by Hoopoe in connection with collection of these amounts, including without limitation, collection agency fees, reasonable attorneys fees and arbitration costs or litigation costs.
- As a Registered User and Damroo Provider you agree that you are solely responsible (to us and to others) for the activity that occurs under your Account. Hoopoe also reserves the right to introduce a plan based on subscription fees or any other fees at any time and such subscription fees would be applicable unless the Registered User opts out.
- We reserve the right to disable your Account including Damroo Provider Account, and remove or disable any content you upload or share, in case you have failed to comply with any of the provisions of these Terms and/or the Damroo Music Rights Distribution Agreement and/or Damroo Streaming Agreement or if activities occur on your account which, in our sole discretion, would or might cause damage to or impair the Services or infringe or violate any third party rights, or violate any applicable laws or regulations.
- If you no longer want to use our Services again, and would like your account and data deleted, we can take care of this for you. Please contact us via [email protected], and we will provide you with further assistance and guide you through the process. Once you choose to delete your Account, you will not be able to reactivate your Account or retrieve any of the content or information you have added.
- You agree to hold us harmless in connection with any and all claims relating to the foregoing and to any features provided on Damroo. You further agree that we will not be responsible for any unauthorized, unlawful or illegal use, access, circumvention of Damroo platform or any content, data, information, features made available on it, by any person.
- CHANGES TO THE TERMS
We retain the right to amend the Terms from time to time, for instance when we update the functionality of our Services or when there are regulatory changes. We will use commercially reasonable efforts to generally notify all Users and Registered Users of any material changes to these Terms, such as through a notice on the Damroo application, however, you should look at the Terms regularly to check for such changes. We will also update the “Last Updated” date at the top of these Terms, which reflect the effective date of such Terms. Your continued access or use of the Services after the date of the new Terms constitutes your acceptance of the new Terms. If you do not agree to the new Terms, you must stop accessing or using the Services.
- INTELLECTUAL PROPERTY RIGHTS
The content on the Damroo application including, without limitation, videos, software, text, graphics, code, interactive features, logos, photos, music and all other audible and visual materials, as well as the selection, organization, coordination, compilation and overall look and feel of the Damroo application are the intellectual property of the Company, its licensors and its suppliers. The above-stated content is protected by copyright, trade dress, patent, trademark and other laws, international conventions and proprietary rights and all ownership rights to the Damroo Content remain with Hoopoe , its licensors or its suppliers, as the case may be. All trademarks, service marks, and trade names are proprietary to Hoopoe or its affiliates and/or third party licensors.
In case you are a Damroo Provider, the intellectual property for the content uploaded by you shall be governed by the Damroo Music Rights Distribution Agreement and/or Damroo Streaming Agreement.
- YOUR USE OF SERVICE AND HOOPOE’S’ CONTENT ON DAMROO
- Limited License: Subject to your compliance with the Terms herein, Hoopoe hereby grants you as a User and Registered User (including Damroo Provider) a personal, limited, non-exclusive, non-transferable, freely revocable license to use the Damroo application for the personal and non-commercial access to Damroo Content only. Except for the foregoing limited license, no right, title or interest shall be transferred to you. The Damroo Content is provided to you ‘AS IS’ basis for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. We reserve all rights not expressly granted in and to the Damroo Application and/or Services and the Damroo Content. You agree to not engage in the use, copying, or distribution of any of the Damroo Content other than expressly permitted herein. Any unauthorized use of the Damroo Content or Services will result in termination of the limited license granted by us and cancellation of your membership. Use of Damroo application and Services for any other purpose may result in severe civil and criminal penalties. We do not promote, foster or condone the copying of Damroo Content, or any other infringing activity. Violators will be prosecuted to the maximum extent possible.
- Restrictions:Your access to and use of the Services and the Damroo Content is subject to these Terms and all applicable laws and regulations as well as any term contained under the Damroo Music Rights Distribution Agreement and/or Damroo Streaming Agreement . You may not:
- circumvent, remove, alter, deactivate, degrade or thwart any of the content protections in the Damroo application and/or the Services;
- either directly or through the use of any device, software, internet site, web-based service, or other means unauthorizedly copy, download, stream capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Content unless expressly permitted by Hoopoe in writing;
- interfere with or attempt to interfere with the proper working of the Services, disrupt the application or our website or any networks connected to the Services or bypass any measures we may use to prevent or restrict access to the Services;
- incorporate the Services or any portion thereof including Damroo’ Content into any other program or product and/or in any other media or format;
- use the Damroo application or the Service in any manner that could damage, disable, overburden, or impair and not to undertake any action which is harmful or potentially harmful to any the Company´s servers, or the network(s), computer systems / resource connected to any the Company server, or interfere with any other party´s use and enjoyment of the Damroo application;
- obtain or attempt to obtain any materials or information through any means not intentionally made available through the Damroo Application;
- carry out any “denial of service” (DoS, DDoS) or any other harmful attacks on the Damroo application or service;
- disrupt, place unreasonable burdens or excessive loads on, interfere with or attempt to make or attempt any unauthorized access to any Hoopoe’s or uTunes’ website or the website of any the Hoopoe’s licensees;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Damroo application;
- attempt to gain unauthorized access to Damroo application, other accounts and computer systems through hacking, password mining or any other means. You shall not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Damroo application or services;
- impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute or otherwise make available emanates from the Service or Hoopoe.
- intimidate or harass another or promote sexually explicit material, child abuse or pornography, violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- commercializing or monetizing the Damroo Content in any unauthorized or illegal manner whatsoever.
- ADVERTISING MATERIAL
Part of the Damroo application or services may contain advertising information or promotion material or other material submitted to the Hoopoe by third parties. In consideration for granting you access to our Services on the Damroo application, you agree that we may place such advertisements on the Services. Responsibility for ensuring that material submitted for inclusion on the Damroo application complies with applicable international and national law is exclusively on the party providing the information/material. Your correspondence or business dealings with, or participation in promotions of advertisers including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. Before relying on any advertising material, you should independently verify its relevance for your purpose, and should obtain appropriate professional advice. We shall not be responsible nor liable for any loss or claim that you may have against an advertiser or any consequential damages arising on account of your relying on the contents of the advertisement.
- COLLECTION AND USE OF PERSONAL INFORMATION
- THIRD PARTY SITES AND INFORMATION
- Where our Services contain links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them.
- Whenever you access or use a feature that allows you to upload or transmit User Content through the Services (including via certain third-party social media platforms such as Facebook, YouTube etc.), or to make contact with other users of the Services, you must comply with the Terms. You may also choose to upload or transmit your User Content, including User Content on sites or platforms hosted by third parties. If you decide to do this, you must comply with their content guidelines as well as with these Terms. These features may not be available to all users of the Services, and we have no liability to you for limiting your right to certain features of the Services.
You also understand and acknowledge that the Hoopoe only facilitates the thrid party payment gateway for processing of payment. This facility is managed by the third party payment gateway provider and you are required to follow all the terms and conditions of such third party payment gateway provider. You are responsible for the accuracy and authenticity of the information provided by you, including the bank account number/credit card details and the like. You agree and acknowledge that Hoopoe shall not be liable and in no way held responsible for any losses whatsoever, whether direct, indirect, incidental or consequential including without limitation any losses due to delay in processing pf payment instruction or any credit card fraud. You can file any complaint related to payment transfer at Damroo and the same shall be forwarded by Damroo to the concerned third- party payment gateway provider for redressal.
We may, in our sole discretion, terminate this Agreement, restrict, suspend or terminate your use of Damroo immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement in any way, and it will not limit any other rights or remedies which are available to us.
- DISCLAIMER OF WARRANTIES
You expressly agree that use of and access to Damroo is at your sole risk. Damroo and its services are provided on an “as is” “with all faults” and an “as available” basis. We do not make, and hereby disclaim, any representations or warranties regarding Damroo or any Damroo Content offered through Damroo or any portion thereof, express, implied or statutory, including (without limitation) implied warranties of any kind relating to title, non-infringement of third party rights etc. We make no representation or warranty that any material, Damroo’ Content, softwares or services displayed on or offered through Damroo are accurate, complete, appropriate, reliable, or timely. We also make no representations or warranties that Damroo will meet your requirements and/or your access to and use of Damroo will be uninterrupted or error-free, free of viruses, malicious code, or other harmful components, or otherwise secure.
- LIMITATION OF LIABILITY
- To the maximum extent permitted by applicable law, we, our affiliates, licensors, investors, promoters, agents, officers, or third-party service providers shall not be liable to you or any third party for any direct, indirect, incidental, special, exemplary, punitive or consequential damages, and/or for loss of profits/ revenues/ data/ business, or for any other form of damages in any manner arising out of or in connection with this agreement or for your use of Damroo including any (i) errors, mistakes, or inaccuracies of ’ Damroo Content, (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of Damroo, (iii) any unauthorized access to or use of our secure servers and/or any and all personal information and/or financial information stored therein, (iv) any interruption or cessation of transmission to or from Damroo, (iv) any bugs, viruses, trojan horses, or the like, which may be transmitted to or through Damroo by any third party, and/or (v) any errors or omissions in any content or for any loss or damage of any kind incurred as a result of your use of any Damroo’ Content posted, emailed, transmitted, or otherwise made available via Damroo, whether based on warranty, contract, tort, or any other legal theory, and whether or not the company is advised of the possibility of such damages, regardless of the form of action or the basis of the claim (including negligence).
- You hereby disclaim, waive and forego any and all liability, both civil and criminal, whether contractual or statutory, arising in the past, existing at present or potentially arising in future, out of or in relation to, any use of any Damroo Content or Damroo Provider Content by us pursuant to and in the manner agreed hereinabove.
- You further agree to participate in and defend us in any proceedings, actions, investigations of any kind whatsoever in relation to your use (including misuse) of Damroo, Services, Damroo Content or part thereof; or your breach as stated above.
- As stated above, you further agree to hold harmless, defend and indemnify Hoopoe Media Private Limited and uTunes Entertainment Pvt. Ltd. against any losses, expenses, costs or damages (including our reasonable attorneys’ and legal costs, fees and expenses and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action arising out of breach of your warranties.
- In addition to the above as a Damroo Provider, you agree to comply with the representation, warranties and indemnities contained in the Damroo Music Rights Distribution Agreement and/or Damroo Streaming Agreement
- CHOICE OF LAW AND CONSENT TO JURISDICTION
This Agreement is governed by the laws of India, without regard to its conflicts of law provisions; and you hereby consent to the exclusive jurisdiction of courts in Mumbai, India with respect to all disputes arising out of or relating to Damroo. In addition, you hereby consent to the exclusive jurisdiction of and venue in such courts for any action commenced by you against us (or our affiliates).
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
- COPYRIGHT POLICY
- Any Content uploaded or accessible on or from Damroo shall be subject to our Copyright Policy as well as Damroo Music Rights Distribution Agreement and/or Damroo Streaming Agreement. We respect the intellectual property rights of others and expect users to do the same. We take reasonable measures to remove any infringing material from our Service, which is brought to our notice. In case you find any Damroo Provider Content is in violation of any provision of the applicable law in relation to Copyright in India, you can report such violation to us at [email protected] in such manner asper applicable law, including without limitation should contain the following:
The notification must include the following:
- An email address, physical address and a phone number so that we and the uploader of your work can contact you.
- A clear and complete description of your work that you believe has been infringed.
- The URL or other identifying location of the allegedly infringing work.
- A statement that you have a good faith belief that use of the content in the manner complained of is not authorized by the copyright owner, its agent, or law.
- We may also require you to submit evidence of copyright ownership
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the copyright owner
- The physical or electronic signature of the copyright owner or an authorized representative of the copyright owner. To satisfy this requirement, you may type your full legal name (not that of a company) at the bottom of your notification.
- If you receive a copyright infringement notification that you believe to be in error, you may provide us with a counter-notification containing details of such errors in the same format as specified above. The counter-notification process may take no less than 10 business days to complete, please be patient. During this time, the copyright claimant may file an action seeking a court order to keep the content down. Please note that we will forward the entire counter-notification to the copyright claimant, including any personal information you provide, and the counter-notification may be made public. The claimant may use this information to file a lawsuit against you. If we do not receive notice within 10 business days that the original reporter is seeking a court order to prevent further infringement of the material at issue, we may replace or cease disabling access to the material that was removed.
- As part of our Copyright Policy, we will take down/block access to content uploaded on Damroo in violation of applicable laws and in case of repeat infringements, terminate user access to Damroo altogether in case a user has been notified of infringing activity more than twice.
- OTHER PROVISIONS
- You agree that Damroo and all our services, servers and features are provided to you from Mumbai.
- No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this Agreement.
- You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void from inception.
- Grievance Officer: Pursuant to Rule 3(10) of the Information Technology (Intermediary Guidelines) Rules, 2011, the details of our grievance officer as stated below:
Address: E404 Gaurav Residency CHS Ltd. Phase 1, Beverly Park, Mira Road (E), Thane 401107
Email: [email protected]